The Universalist. [volume] (Chicago [Ill.]) 1884-1897, 1887-12-17
Special Contributors.
THE PHILOSOPHY OF LAW.
By REV. WILLIAM TUCKER, D. D.
Mount Gilead, o.

Law like religion is natural to man.
1t is to be found in some form among
all nations and in all ages. Like socl-
ETY., the family religion, worship and
property, it is universal institution.
It has grown out of society, and grown
with society as one of the forms of so.
cial development. 1t is a social insti-
tuition, growing out of mans social ma
ture and social relations. We never
find it outside of society. The condi-
tions that make it necessary and profit
able are social.
Its very existence is evidence that
man is a moral being. 1t is grounded in
mans sense of obligation and conscious
ness of responsibility. 1t recognizes a
moral quality in actions. In law hui
man conduct is either right or wrong.
1t is the legal form in which we meas
ure the duties and obligations which
grow out of mans nature and relations,
Law is based upon the assumption or
the consciousness that man is free.
The legal conditions of responsible
action are intelligence and freedom.
Take these from man and there could
be no legal responsibility. Fatalism
in science, necessity in philosophy and
Slaavassssa-isSssAsaloes logically and
psychologically make science of law
as well as science of ethics impossible.
The idiot, the insane, and those who
have no freedom of choice and liberty
of action, are held in civil and crimi-
nal law to be irresponsible. In such
cases the moral and legal conditions of
responsibility do not exist.
Intelligence, reason, conscience and
will are the psychological elements
that enter into all law. The intelli-
gent comprehension of our relations,
and the consciousness of obligation and
freedom enter as essential postulates
into the logical constitution of the phi
losophy and science of Jurisprudence.
The science of law necessitates the as
sumption of some personal being who IS
superior to man and is in authority
over him. Here law is rooted in relig-
ion.
Law implies obligation and response
bility. There must therefore be some
being who has the right to impose
upon man obligation, to hold him re-
sponsible for his conduct, and to lay
upon him the law of duty. The science
of law and the science of theology grow
from the same ethical and religious
root which is an indestructible part of
mans spiritual nature. Man as exist
ing in conscious relation to God as his
creator and Father is necessary to the
existence of both.
Atheism, materialism, fatalism and
necessity in theology, philosophy and
science are in theory and practice sub
versive of all law, as we'll as of all
morals and religion. They deny the
existence of the fundamental elements
in the nature and relations of men that
enter into the science and philosophy
of law. If these systems are true,
there is no need and nc room for law
as a rule of free and voluntary action
There is no such action. If response
Bile free agents do not exist, there are
no free actions; and all law to govern
and punish mans free actions is not
only a great mistake but a great engine
of cruelty and oppression. 1t inhicts
upon men pains and penalties for ac-
tions that they could no more help, if
materialism and fatalism be true, than
they could suspend the action of gTavi-
tation. Under the practical application
of these theories of man and life, a
science of law would be impossible.
These principles are recognized and
applied by all the great standard writ
ers on the philosophy and science of
jurisprudence; and we do not know any
great legal authority who rejects them
as important elements of legal science.
Blackstone, Austin, Bacon, Tucker,
JuSlluldu, I1Oilduu anu A1dluc, an III
discussing the great doctrines of legal
science refer to and apply these funda-
mental principles and elements found
in the nature and relations of man.
The "mud philosophy" has no place in
legal science, and in law man is regard
ed as more than an animal. The
teachers in other branches of science
may believe and advocate this goddess